Northern Territory of Australia v Austral & Ors [2025] NTCA 3

The Northern Territory, in my opinion, is also correct in its contention that the findings of the primary judge establish that the deployment of the CS gas was reasonably necessary to restrain conduct by Jake Roper which constituted a breach of the peace. In her careful and comprehensive reasons for judgment, her Honour found that the CS gas "was not used on the detainees in their cells" but "for the purpose of temporarily incapacitating Jake Roper so that he could be taken back in the safe custody ... in a way that avoided the risk of serious ... injury to Jake Roper and/or the prison officers". She agreed with the contemporaneously formed opinions of the Director and of the prison officers who comprised the Immediate Action Team that "use of the CS gas was the least hazardous option available, constituted the least degree of force which could be used in the circumstances, and carried the least risk of serious injury to Jake Roper and to staff". The effect of the deployment of the CS gas on the other detainees was not ignored in that calculus but was, rather, reasonably assessed by the Director and the members of the Immediate Action Team to be outweighed by the risks of serious injury to Jake Roper and to staff. "Despite the fact that the inevitable consequence of using the gas was that detainees who were restrained in their cells would also be exposed to the gas", her Honour found, "it was both reasonable and necessary in the circumstances to use the gas to temporarily incapacitate Jake Roper and so bring the crisis to a close".[26]

• [44] The importance of the finding by the primary judge that the use of the CS gas was not a use of force in excess of that called for by the situation is clear. That finding was made while accepting that the respondents (and Roper) were minors. It follows that, in the present case, the "something more" which the plurality in Gray said needs to be found in order to justify an award of exemplary damages cannot be found in any submission that the deployment of CS gas was unnecessary or excessive in order to meet the threat presented by the conduct of Roper.
• [45] In the present appeal, the respondents submitted that the findings made by the primary judge on this issue did not bind the assessing judge for the purpose of awarding exemplary damages. They submitted that the primary judge had never made the findings for the purpose of awarding exemplary damages for the deployment of the CS gas. That is undoubtedly true, for the simple reason that the primary judge held that the deployment of CS gas was lawful; but this submission is not to the point. Even if the use of CS gas within the Centre had been permitted by statute at the time, in order to avoid liability to the respondents in tort for battery for compensatory, aggravated and/or exemplary damages, the appellant had to prove that its actions fell within the limitations fixed by s 153(2) of the Youth Justice Act; that is, that they were reasonably necessary in the circumstances.
• [46] The finding made by the primary judge that deployment of CS gas was reasonable and necessary was not linked to the finding that the use of CS gas was not prohibited by statute. It was a separate finding relevant to another issue, being whether the use of that level of force was unreasonable or unnecessary. It is not correct to say, as the respondents submitted, that the primary judge assessed the reasonableness of the appellant's conduct in deploying CS gas through the lens of lawfulness. The primary judge considered each issue separately and found, albeit erroneously, that the use of CS gas in the Centre was not prohibited by statute. The primary judge then quite separately went on to find that the level of force used was both necessary and not unreasonable in the circumstances. This second finding was conceded by the respondents in their appeal to this Court from the decision of the primary judge and that finding has not been successfully challenged or otherwise set aside.
• [47] In an abstract sense it may be correct to say that the use of CS gas could never have been reasonably necessary as its use was prohibited by statute, but such an approach conflates the lawfulness of the type of force used and the lawfulness of the level of force used. The unlawfulness of the use of the CS gas entitles the respondents to compensatory damages but does not, of itself, justify an award of exemplary damages. That is because it is possible to say in all cases where a battery has been committed that the plaintiff should not have been exposed to the wrongful act. That is what entitles the plaintiff to compensatory damages, but it does not necessarily, and will rarely, found an award of exemplary damages.
• [48] The orders made by the High Court in upholding the appeal by each respondent were that the order of the primary judge entering judgment for the present appellant on the claim for battery arising out of the use of CS gas on 21 August 2014 be set aside, judgment for the respondent be substituted; and that the matter be remitted to another judge of the Supreme Court "for assessment of damages". As the terms of those orders demonstrate, this was not a case in which allowing the appeals resulted in the matter being remitted for a new trial. The remittal in the present case was limited to an assessment of damages on the respondents' claims regarding the use of CS gas. That assessment could only be a continuation of the proceedings conducted before the primary judge. The relevant issues and principles which govern the scope of a court's task on remittal were set out in some detail by Jackson J in Harvard Nominees Pty Ltd v Tiller (No 4), in which his Honour stated:

The obvious and important qualification is that the remitter is to be conducted in light of the decision of the Full Court in which the remitter is ordered. That has at least three implications. The first is that the court on remitter must act consistently with the Appeal Judgment. That includes not only the ultimate orders made, which may give express direction to the court on remitter, but also the reasons for decision. The authorities for this basal proposition tend to be in the context of s 37 of the Judiciary Act 1903 (Cth), which imposes on courts to which the High Court remits a cause an express obligation to execute the judgment of the High Court in the same manner as if it were their own judgment: see the authorities collected by Pritchard J in Investments (WA) Pty Ltd v City of Swan [2012] WASC 278 at [35]. The power to remit under s 28(1)(c) of the Federal Court Act is not accompanied by any similar express requirement, although the different power under s 28(1)(g) is: see s 28(2). But none of the parties here suggested that this made any difference; where an appellate court, higher in the hierarchy that a primary court, determines a matter in a certain way, it must follow that the primary court cannot depart from that determination on remitter.

The second implication is that where the appellate court has disturbed findings of the primary court, and therefore potentially reopened issues that the primary court had resolved, it will be open to the primary court to determine those issues afresh, once again provided that it does so in accordance with the judgment of the appellate court. This will of course include issues that are expressly within the scope of the order of remittal. No application to reopen for the purpose of determining those issues will be necessary. In relation to those issues, the court on remitter may reach a conclusion different to the one it reached the first time. It may of course be required to do so because of the findings of the appellate court.

The third implication is in part a corollary of the second, and arises from the character of the remitter hearing as a continuation of the previous trial. It is that the primary court, on remitter, cannot go outside the scope of what is remitted, or reconsider any of its previous findings that have not been disturbed by the appellate court, unless it determines in accordance with ordinary principles that it is in the interests of the administration of justice to give leave to reopen.

Once again, the authority for the confining effect of the scope of the remitter is mostly based on s 37 of the Judiciary Act, in the context of High Court appeals: see Carroll at [27]. But there is no reason to think that remitters under s 28(1)(c) of the Federal Court Act are any different. It is elementary that if the Full Court has remitted the matter to the primary court to determine specified matters, it is those matters and those matters alone that the primary court has authority to determine. And it follows from the fact that the remitter is a continuation of the previous trial that, subject to the effect of the appellate court's judgment, and to any application to reopen in the interests of justice, the court will not depart from the findings it has already made.

Consistent with this, in Re The Spanish Club Ltd [2015] NSWSC 661 at [53]‑[54] (Spanish Club 1), Black J reached the following conclusions:

The effect of the authorities seems to me to be that, unless an application to reopen my judgment is successful, when made more than two years after that judgment was given and after an appeal from it has been determined, it is not open to me, having reached factual and legal findings in a final judgment in the proceeding, to the extent those findings have not been upheld on appeal, now to reach different or contrary factual and legal findings as to the same issues in the same proceeding. Still less as it is open to me, as a trial judge, to reach findings contrary to those which the Court of Appeal has reached in the same matter, albeit the matter had a different proceeding number in the Court of Appeal. Mr Walker accepted as much in oral submissions.

Mr Walker fairly accepted in oral submissions that, subject to appeal, the determination of a matter in a proceeding is binding for the purposes of that proceeding. ...

It is true that his Honour reached these conclusions after considering arguments based on res judicata and issue estoppel, but it seems to me, with respect, that the same conclusion can be reached by the different route I have outlined.[27]

• [49] We respectfully adopt what was said by Jackson J in that passage as a correct statement of the governing principles when a matter is remitted to a trial court following an appeal. The assessing judge was aware that issues of fact determined by the primary judge had not been subsequently challenged and considered how the decision of the High Court on appeal and the subsequent remittal of the matter to the Supreme Court constituted by a different judge affected the exercise of fact finding on the assessment of damages. In that regard, the assessing judge said (footnotes omitted):

Although the facts found by the primary Judge are not challenged and are relied on here, there are additional considerations relevant to fact finding in the sense that there is now a significant question about how the unlawfulness of the use of the CS gas should affect the assessment of damages. To that extent, some of the relevant issues which fall for consideration here, were not part of the reasoning of the primary Judge because they were not required to be.

Many of the claims before the primary Judge were not related to the matter now under consideration. As pointed out by counsel for the defendant, some of the other claims are closely related to the deployment of the CS gas. An example is the claim at [23] of Leroy O'Shea's Second Further Amended Statement of Claim which includes a sequence of allegations 'marshalling guards in riot uniforms and equipment, and bringing in attack dogs as well as administering CS gas intentionally or recklessly'. Those parts of the claim which failed before the primary Judge, save for the use of CS gas remain undisturbed. So much is clear, however it is appreciated caution is required. The defendant also pointed out the findings about why the CS gas was used and that those findings remain intact including why it was regarded the safest option available. While that may be so, it seems on remittal that the option of the CS gas, how or why it was considered and then used by the officers informs the findings. While respecting the primary Judge's findings, the assessment here must be undertaken on the understanding that the 'option' of the use of CS gas was unlawful. The findings of the primary Judge must now be understood in that context.

That the High Court found the use of CS Gas to be unlawful in a youth detention context must inform the award of damages in a substantial way. There would be no point in remitting the matter for assessment of damages before another Judge if this was simply a technical matter. This was not an adult facility. This was a facility to detain children and youths, albeit in an institution which on the evidence before the primary Judge was "really beyond its life fit for purpose". That being the case, notwithstanding some of the plaintiffs were difficult and hard to control youths, as might be expected in a youth detention centre, the deployment of an unlawful weapon which affected other youths who were in their cells must have some impact on the award of damages.

It is the case as the respondent submitted, the trial Court and the Court of Appeal ruled that the use of the CS gas was not in breach of the Weapons Control Act. While in those circumstances lack of knowledge of the unlawfulness of the use of the CS gas mitigates the position of the officers involved to some degree the same benevolence should not be extended to the Northern Territory. A review of the material before the primary Judge does not indicate that the lawfulness or otherwise of the CS gas had ever been seriously reviewed at an institutional level or that the individuals concerned had turned their mind to the issue. This includes senior officers. There was no indication that advice about the lawfulness or otherwise of such a weapon was ever sought by any relevant Department, the Detention Centre itself or any individual at a time before the occurrence of any critical event such as the one which developed here. There is no evidence that the Youth Justice Officers, including senior officers knew they had positive lawful authority to use the CS gas in a youth detention setting.

It was pointed out in submissions that neither Mr Sizeland, nor Mr Middlebrook, according to their evidence, turned their minds to the question of lawfulness. Mr Sizeland recommended to Mr Middlebrook that the CS gas be used but that "The training did not deal with the use of CS gas on young people in youth detention". He was not aware that the CS gas fogger was a prohibited weapon or that resources were available with reference to use of CS gas in youth detention centres. While Mr Sizeland denied that he knew it was not authorised, there was no evidence he or Mr Middlebrook turned their mind to the question of the lawfulness of the use of the CS gas fogger. Needless to say, senior officers should know, or should find out whether the use of particular weapons are lawful or not in the setting concerned, in particular of a youth detention centre.[28]

• [50] It is necessary for these purposes to address a number of the statements made by the assessing judge in the above extract. First, it is undoubtedly correct that the findings of the primary judge regarding the reason for the deployment of the CS gas remained unaffected by the appeals from the primary judge to this Court and then from this Court to the High Court. It is difficult to know what the assessing judge meant in saying that the finding of the High Court that use of CS gas was not permitted within the Centre "must inform the award of damages in a substantial way." If the assessing judge intended to say that the ruling of the High Court meant that the respondents were entitled to damages according to law for exposure to the CS gas, then there is nothing objectionable or remarkable about that statement. If, however, the assessing judge meant to convey that the High Court's ruling on the issue on appeal, and subsequent remittal of the proceedings to the Supreme Court, was a relevant circumstance in determining whether exemplary damages should be awarded, and any assessment of the quantum of those damages, then we must respectfully disagree. The ratio of the High Court's decision was that the use of the CS fogger within the Centre was not authorised by any exception or exemption found in the Weapons Control Act, and as such its use on 21 August 2014 was unlawful. The ruling of the High Court said nothing which was relevant to determining whether circumstances existed to justify an award of exemplary damages.
• [51] It was also incorrect, with respect, to state that the respondents had submitted that "neither Mr Sizeland, nor Mr Middlebrook, according to their evidence, turned their minds to the question of lawfulness" of the use of CS gas within the Centre. What the respondents actually submitted to the assessing judge in relation to this issue was:

(a) "[W]e say ...that it was clear that CS gas was not authorised to use in a detention centre. But we'll also say that to the extent there was any uncertainty about that on the part of, for example, Commissioner Middlebrook, that situation should never have been allowed to occur. It should never have been possible that senior people did not know what their own laws said about the use of CS gas."

(b) "Now we say that there should never have been any room for that kind of misapprehension (as to the lawfulness of the use of CS gas within the Centre). It should not have been understood to be an option open to them to use CS gas...But to the extent there was uncertainty we say that the policies and guidelines with respect to youth detention should have made it clear, you shouldn't have room for doubt about matters of this kind..."

• [52] We have been unable to identify any submission by the respondents to either the primary judge or to the assessing judge to the effect that either Commissioner Middlebrook or Mr Sizeland gave evidence that he had failed to turn his mind to the lawfulness of the use of CS gas within the Centre. There was only a hypothesis that no thought had been given to the issue of lawfulness. Accordingly, the assessing judge's description of the respondents' submission on that issue was incorrect.
• [53] It is also instructive in this context to examine what evidence there was in relation to the states of mind of those involved in approving the use of CS gas on 21 August 2014. The primary judge did not make any finding on the issue of the belief of those involved in the use of the CS gas as to the lawfulness of their actions. It was unnecessary to do so because the primary judge found that its use was lawful. The issue did not arise on the hearing of the appeal from the primary judge to this Court or on the appeal from this Court to the High Court.
• [54] The evidence of AGM Sizeland at trial concerning his understanding of the position regarding the use of CS gas within the Centre on 21 August 2014 was as follows:

MS FOLEY: In August 2014 when you were deputy superintendent were you aware that an article used to deploy CS Gas was a prohibited weapon for the purposes of the Weapons Control Act? --- No I did not.

MS FOLEY: You say that even though in 2013 you were the security chief of the [Darwin Correctional Centre]? --- Yes.

MS FOLEY: And that you were the first IAT commander and had a role in emergency response? --- Yes.

MS FOLEY: So you weren't aware that in August 2014 prison officers had an exemption under the Weapons Control Act to be able to carry prohibited weapons? --- I knew we had exemptions. I wasn't clearly present with the Act you're referring to.

MS FOLEY: I suggest to you that in August 2014 you knew that CS Gas was not authorised for use in a youth detention Centre at all under any circumstances? --- No that's not correct.[29]

• [55] It is tolerably clear from that evidence that AGM Sizeland believed there were exemptions in place which permitted the use of CS gas in a youth detention centre. The fact that he may not have been aware of the actual provisions of the Weapons Control Act is not to the point in the present case. If a reading of the provisions of the Weapons Control Act would have made it abundantly clear to a person in the position of AGM Sizeland that the use of CS gas was unlawful in the Centre under any circumstances, then an unfamiliarity with the terms of the governing legislation may have been relevant. However, as has been demonstrated by the divergence of judicial opinion at various stages of these proceedings, the issue was not so clear.
• [56] The evidence of Commissioner Middlebrook at trial on this issue was as follows:

MS FOLEY: You were aware in August 2014 weren't you that an article used to deploy CS gas was a prohibited weapon for the purposes of the Weapons Control Act weren't you? --- Not for correctional offices in a correctional setting.

MS FOLEY: I'm not asking about the exemptions. I am asking as a general proposition were you aware that an article used to deploy CS gas was a prohibited weapon?

THE WITNESS: It would be to use it outside a correctional centre.

MS FOLEY: So you're aware, from what you're saying, there was an exemption under the Weapons Control Act for prison officers in correctional centres? --- Yes. Yeah, correctional centre and the juvenile detention centre is a correctional centre.

MS FOLEY: You were aware though that Youth Justice Officers didn't have such an exemption? --- The youth officers didn't use the chemical. The prison officers used the chemical.[30]

• [57] Commissioner Middlebrook subsequently denied that he knew on 21 August 2014 that the use of CS gas was only authorised in adult custodial centres.
• [58] A fair reading of the evidence of AGM Sizeland and Commissioner Middlebrook leads to the conclusion that to the extent they did not turn their minds to the use of CS gas in the Centre on 21 August 2014 this was because they already had a belief that its use was authorised. This is very different to a reckless state of mind constituted by an understanding that it may not be authorised but using it anyway, or an attitude of not caring one way or the other whether its use was authorised.
• [59] The basis for and significance of the assessing judge's finding that AGM Sizeland was unaware "that resources were available with reference to use of CS gas in youth detention centres"[31] is unclear, particularly in the light of the finding by the primary judge that there was no evidence that CS gas had a different or more harmful effect upon young people of the ages of the respondents than on adults. That finding by the primary judge also disposes of any submission that the fact that the respondents were youths by itself justifies an award of exemplary damages. While it is no doubt correct to say that senior officers working in a youth detention centre should know what types of force may, and may not, be used in that setting, that is not to say that an honest mistake on their part will necessarily ground an award of exemplary damages.
• [60] In the light of the findings made by the primary judge that the level of force used was not disproportionate to the threat presented by the conduct of Roper, it was not open to the assessing judge to find that the actions of the appellant towards Roper constituted "unreasonable or excessive force" other than in the general sense that the use of CS gas within the Centre was prohibited by statute. An assessment of the relevant evidence leads to the conclusion that those responsible for the decision to deploy CS gas on 21 August 2014 honestly, and not unreasonably, believed that its use in the Centre by Corrections Officers was lawful.
• [61] The relevant evidence, in conjunction with the primary judge's finding that there was no other option reasonably available involving less force and less risk to the safety of detainees and staff,[32] also leads to the conclusion that those responsible for the decision also held the reasonable belief that it was necessary to bring the situation with Roper in the BMU to a quick conclusion and that the use of CS gas was the safest method of dealing with the situation. The regrettable fact that the safest method of dealing with the situation was contrary to the provisions of the Weapons Control Act did not bespeak malice or conscious wrongdoing in contumelious disregard of the respondents' rights. In fact, conduct which, although unlawful, is done reasonably and in good faith is the "antithesis of conduct which should be punished by an award of exemplary damages".[33]
• [62] The respondents submitted that it would be unrealistic to consider the appropriateness of the award for exemplary damages confined only to the deployment of CS gas, and that the episode must be viewed "holistically", including post-exposure conduct such as handcuffing the respondents and the method of decontamination employed. Although it can be accepted that other conduct may be taken into account in awarding exemplary damages, an award of that type can only be made to punish the tortious conduct. The decision in Lamb v Cotogno does not stand for any broader proposition_._ Although the award of exemplary damages in that matter took into account that the defendant had left the plaintiff by the roadside after the tortious act of causing injury by the use of a motor vehicle, that act formed part of the compensable wrong. Having caused the plaintiff's injuries through a tortious act, the defendant was under a duty to take reasonable steps to alleviate the effect of his wrongdoing. The defendant's cruel and reckless disregard for the welfare of the plaintiff, and the indifference to his plight, meant that the tort was committed in circumstances amounting to insult to the plaintiff.[34]
• [63] Some care must be taken in accepting the respondents' submission that the conduct properly taken into consideration in assessing whether exemplary damages should be awarded is not confined to conduct surrounding the commission of the tort. That submission was made with reference to the decision of the New South Wales Court of Appeal in Cheng v Farjudi.[35] The relevant passage in that decision referred as authority to the earlier decision in Channel Seven Sydney Pty Ltd v Mahommed. The uncontroversial principle expressed in that case is that in defamation proceedings a claim for exemplary damages may be made with reference to the defendant's subsequent conduct and statements, including in relation to the issue of malice.[36]
• [64] Although the consideration of conduct taking place following the commission of the tort is not restricted to defamation cases, the conduct in question must be directly related to the effect of the tortious conduct, rather than to some different species of wrong. In the matter of White & Ors v South Australia, the police officers who committed the torts of assault, wrongful arrest and false imprisonment knew the conditions in which the plaintiffs were imprisoned were degrading and had thereby engaged in conscious wrongdoing in contumelious disregard of the plaintiff's rights. The State was vicariously liable for that conduct. Subsequent statements by the Deputy Premier and Police Minister had failed to acknowledge the manner in which the police officers had dealt with the plaintiffs, and none of the police officers had been held accountable despite adverse findings by the Police Complaints Authority.[37] To the extent the award of exemplary damages was made on that basis, it reflected the duty on the State to take reasonable steps to alleviate the effect of the police wrongdoing for which it was vicariously liable. Neither the reasons nor the result in that case advance the proposition that exemplary damages may be awarded for a purported tortious liability which has not been pleaded and established at trial.[38] In making the assessment, the primary focus must be on the conduct for which the defendant is held liable and the state of mind of the tortfeasor.[39]
• [65] Accepting that other conduct may be taken into account for the limited purposes described above in awarding exemplary damages, the difficulty for the respondents is that much of this submission runs contrary to findings of fact made by the primary judge which have not been challenged on appeal or overturned. In addition, a fair assessment of the evidence does not support the proposition that unnecessary force was employed by the officers of the appellant or that the respondents were subjected to humiliating conduct after their exposure to the gas.
• [66] In order to understand why handcuffing the respondents was reasonable in the circumstances, it is necessary to briefly consider the backgrounds of the respondents. The primary judge provided a brief background for each of the respondents and Roper, referring to the respondents by their initials, in the following terms (footnotes omitted):

On 21 August 2014, EA had just turned 16. He spent his 16th birthday in a cell in the Behaviour Management Unit ("BMU") at Don Dale in which he was locked for 23 hours a day. He shared that cell with another of the plaintiffs, JB. (All of the plaintiffs were held in the BMU in the same conditions.)

Video footage of EA taken at the Berrimah Correctional Centre at Berrimah ("Berrimah") on 25 August 2014 shows that in August 2014 EA was about 6 feet tall, solidly built (not fat) and well-muscled.

By this date EA had an extensive criminal history starting from when he was 11 years old. He had been found guilty of one charge of assaulting a female and one charge of property damage. He had also been found guilty of numerous offences of dishonesty: four charges of unlawful use of a motor vehicle, two charges of unlawful possession of property, six charges of trespass, seven charges of aggravated unlawful entry, and 14 charges of stealing. Up to that time he had also been dealt with five times for breaches of bail and four times for failure to comply with Youth Court orders. In addition, before 21 August 2014 he had committed one further offence of property damage, one of being armed with an offensive weapon, two offences of escaping from lawful custody/detention, four trespasses, five more aggravated unlawful entries, six more thefts, three offences of unlawful use of a motor vehicle and two of receiving stolen property. However, he was dealt with for those matters after 21 August. The offences of being armed with an offensive weapon, escape from custody, trespass on enclosed premises, escape from lawful detention, stealing and aggravated unlawful entry were all committed during an escape from Don Dale on 2 August 2014 with the other plaintiffs or while he was at large following that escape.

EA's behaviour during his detention in Don Dale can only be regarded as extremely problematical. In the period of approximately six months before the incident on 21 August 2014, he had committed five assaults against staff or other detainees (pushing, punching, kicking/stomping on someone's head, throwing a chair and a wheelie bin, in two separate incidents, in each of which the thrown object hit the victim); one act of property damage (smashing up lights) and six incidents in which he threatened to assault staff or other detainees (including threats to "smash" others, kick their heads in or hurt them). Three of the threats were accompanied by actual violence, others by aggressive posturing. He was also involved in one escape attempt and one successful escape along with the other plaintiffs and Jake Roper.

JB too was a fit looking, well-built young man. On 21 August 2014, he was 15 years old and by that time he too had a lengthy criminal history. He had been found guilty of recklessly endangering serious harm, possessing or carrying a controlled weapon, and 10 charges of unlawful damage to property, as well as disorderly behaviour, resisting police and possession of cannabis. He too had been found guilty of numerous offences of dishonesty: two charges of receiving or unlawfully possessing property, seven charges of unlawful use of a motor vehicle, 17 charges of aggravated unlawful entry (and three of trespass) and 17 charges of stealing; as well as nine charges of property damage, eight breaches of bail and six failures to comply with Youth Court orders. Importantly for present purposes, by this time he had also been found guilty on two occasions of escaping from lawful custody or detention. In addition, before 21 August 2014 he had committed further offences of unlawful use of a motor vehicle, trespass, being armed with an offensive weapon, a further offence of escaping from lawful custody and a further offence of escaping from lawful detention. However, he was dealt with for these offences after 21 August 2014. The offences of escaping from lawful detention, trespass and being armed with an offensive weapon were committed during the escape on 2 August, or while he was at large following that escape.

While in detention at Don Dale before 21 August 2014, JB was involved in a series of planned, attempted, and actual escapes.

(a) On 24 March 2013, JB and 10 others broke out onto the roof of the facility in an attempt to escape, and during the attempt they caused damage to the facility.

(b) On 8 August 2013, another detainee reported that JB and others were planning an escape. Four days later, on 12 August 2013, JB got out onto the roof again in another attempt to escape and again property was damaged in the attempt.

(c) Police reported to Don Dale that while JB and the others were in police custody following the attempt on 12 August 2013, there had been a scuffle in the cells with police officers and JB and the others were overheard making plans to again escape from custody.

(d) On 17 February 2014, when he was appearing in the Court of Summary Jurisdiction ("CSJ"), JB jumped over the screen in the dock and ran out of the courtroom and then out onto the street.

(e) On 13 March 2014 a Youth Justice Officer ("YJO") overheard JB and another detainee discussing escaping by attacking a staff member and taking her keys.

(f) On 30 May 2014 JB damaged the door of an escort vehicle in what was construed as an escape attempt.

(g) On 2 August 2014, all of the plaintiffs (JB, EA, LO and KW) along with Jake Roper, successfully escaped from Don Dale.

On 21 August 2014, LO was 17½. Up until 2 August 2014, he had no history of violent offending but had been found guilty of numerous offences of dishonesty: 11 charges of stealing, six of aggravated unlawful entry, two of receiving stolen property, three of property damage, one of trespass and one of unlawful use of a motor vehicle. He also had six breaches of bail, two breaches of Youth Court Orders and one breach of a suspended sentence. In addition he had committed a number of offences - breach of bail, escape from lawful custody, being armed with an offensive weapon, trespass and unlawful use of a motor vehicle - for which he was dealt with after 21 August. All of these, except the breach of bail, arose out of the 2 August escape and its aftermath.

Before the escape which led to the detainees being placed in the BMU, LO had one recorded incident of non-compliance and abuse of staff and two of non-compliance and abuse of staff in which he also threatened staff, but no incidents of actual violence.

On 21 August 2014, KW was 15 years old (due to turn 16 in early November). He too had no history of violent offending but by 21 August 2014 he had been found guilty of very many offences of dishonesty: 18 charges of unlawful use of a motor vehicle, 20 charges of stealing, 12 of aggravated unlawful entry, three of trespass and three of property damage. He also had three breaches of bail and six failures to comply with Youth Court orders. He had also committed a number of offences before 21 August which were dealt with after that date. These included one charge of escaping lawful detention, one of trespass and one of being armed with an offensive weapon arising out of the escape on 2 August and one charge of stealing, two of aggravated unlawful entry and two of unlawful use of a motor vehicle committed while he was at large.

There is no evidence that KW was involved in any incidents of violence, threats, abuse or non-compliance at Don Dale before taking part in the successful escape with Jake Roper and the other plaintiffs on 2 August 2014.

For the sake of completeness, mention should be made of the behaviour in Don Dale of the other escapee, Jake Roper, whose behaviour on 21 August 2014 led to the events which are complained of by the plaintiffs in this proceeding. About two weeks before the escape, Jake Roper king hit another detainee and kicked him forcefully in the head while he was lying on the ground. The other detainee was sent to hospital.[40]

• [67] The primary judge determined that it was "reasonable and necessary" to handcuff the respondents based upon their histories. That finding was not challenged or overturned on appeal. It was not open to the assessing judge to make a different finding. In any event, the finding by the primary judge in that respect was correct having regard to the evidence. In addition, the primary judge, having viewed the video recording of the respondents being decontaminated, rejected an allegation that the guards were rough with the respondents and stated:

The video footage does not support this allegation. It shows the detainees, handcuffed behind their backs, lying face down being hosed down. The corrections officers were talking to them in a calm but firm manner and from what I could see hosing them down with a hand placed on the detainee's shoulder. The video shows Jake Roper complaining that he couldn't breathe properly, not because of the gas, but because of the water flowing over his face. The guard then desists and is directed by someone in the background to direct the water onto the detainee's head in a different position - which he does. The hose is held in that more appropriate position by the officers hosing down the other detainees. At another time the video shows a guard checking and adjusting the handcuffs on one of the detainees.[41]

• [68] There was evidence that O'Shea and Austral both suffered from asthma, which would have been revealed if their medical records had been examined before a decision was made to deploy the gas. There was, as the primary judge stated, no evidence that anyone involved in making the decision to use CS gas on 21 August 2014 was aware of the fact that those respondents had a history of asthma. Indeed, AGM Sizeland stated that he knew each of the respondents "fairly well" and he was unaware that they had a history of asthma. The primary judge determined that given the urgency of the situation it would have been unreasonable to expect those responsible for the decision to use the gas to have searched the respondents' medical records before determining to deploy the substance. The fact that O'Shea and Austral had histories of asthma could not, in the circumstances, justify an award of exemplary damages.
• [69] In submissions before the assessing judge, the respondents placed emphasis on the fact that they were juveniles at the time that these events occurred. As can be seen from the from the reasons of the assessing judge which are extracted above, that submission was accepted and instrumental in the determination to award exemplary damages. While the use of CS gas was unlawful in a youth detention centre, it was lawful in an adult correctional facility. Interestingly, and tangentially, there were circumstances in which juveniles could be held, at least temporarily, in adult correctional facilities.[42] Accordingly, if the respondents had been held in an adult correctional facility and exposed to CS gas lawfully used in that facility they would not have been entitled to any form of damages for that exposure. This illustrates that there was no blanket prohibition on the use of CS gas in circumstances where it could affect persons under the age of 18.
• [70] The evidence at trial also sustained a finding that those responsible for the decision to deploy CS gas in the Centre on 21 August 2014 took care to ensure that only the minimum amount of the gas necessary to subdue Roper was used. Those findings included that Commissioner Middlebrook was aware that CS gas could be deployed using different methods, some of which involved less precise deployment of the substance than others. Commissioner Middlebrook was informed that the prison officers had the gas in aerosol form so he was satisfied that this would enable the operators to use a limited amount of gas and to target its use. It is also clear that the officer who deployed the CS gas took care to ensure that only the minimum amount of gas necessary was used. There was a graduated approach adopted by the officer who deployed the gas. As described above, there were initially three short bursts of less than one second in duration. After a short wait, during which Roper was not subdued, there was a further burst of two seconds' duration. This also did not subdue Roper and after a further minute the final six "extremely short" bursts were deployed. The manner in which the gas was deployed was the minimum required to bring Roper under control and was targeted directly at Roper. The manner in which the gas was deployed does not justify awards of exemplary damages.
• [71] It was, with respect, incorrect on the part of the assessing judge to say that the respondents "were treated as though they were the troublemakers" in relation to the deployment of the CS gas. That may well have seemed to the respondents to be the case, because they were also affected. But in assessing whether any obloquy is justified by way of exemplary damages, it is important to bear in mind that the deployment of the gas was directed towards Roper and not the respondents.[43] This was not a case in which custodial officers, to use a general description, used force which they knew was unlawful and excessive directed towards prisoners for no reason.
• [72] The evidence did not reveal "conscious wrongdoing in contumelious disregard" of the respondents' rights on the part of the officers of the appellant. It may be accepted that there are some circumstances in which an award of exemplary damages will be appropriate even if the officer was not "conscious" of his or her wrongdoing.[44] The reasons in Gray and Lamb v Cotogno allow that "conscious wrongdoing" is a usual but not essential condition to the award of exemplary damages. Although the state of mind of the individual actor will always be relevant, exemplary damages may also be awarded "where the defendant has acted in a high-handed fashion or with malice", even in the absence of a specific consciousness of wrongdoing.[45] That is also reflected in what Hodgson JA said in the passage from Riley which has been extracted above, to the effect that conduct may be high-handed, outrageous and show contempt for the rights of others even if it is not malicious or even conscious wrongdoing.
• [73] Even allowing for the breadth of the relevant test, the evidence in this case did not reveal high-handed or outrageous conduct showing contempt for the rights of the respondents. The youth justice officers and correctional officers present at the Centre on 21 August 2014 were placed in an emergency situation by the actions of Roper. They dealt with the situation in a manner which they believed to be lawful, but regrettably was not. They adopted the means of dealing with the situation which was the safest available in the circumstances. There was no evidence that CS gas was more harmful to juveniles of the ages of the respondents than to adults. The gas was deployed in a controlled and graduated manner to ensure that only the minimum amount of gas necessary was used. Once Roper was subdued, the respondents were removed from their cells and decontaminated.
• [74] It must be concluded, therefore, that the assessing judge purported to make multiple findings of fact which were either directly or indirectly inconsistent with findings made by the primary judge and which had not been set aside. The decision of the High Court that the use of CS gas was unlawful in the Centre at that time did not entitle the assessing judge to disregard those facts found by the primary judge to which reference has been made in the foregoing discussion. Even were that not so, a real review of the proceedings before the Court below, as is required in an appeal of this nature, leads necessarily to the conclusion that the conduct and states of mind of the individual officers in these circumstances did not justify making an award of exemplary damages in these cases.
• [75] In addition, the basis upon which the assessing judge awarded exemplary damages differed from that upon which those damages were sought by the respondents. The case pleaded by the respondents was that the appellant was vicariously liable for the wrongful actions of its employees in the events that occurred on 21 August 2014, including their use of CS gas on that day. No case of direct liability on the part of the appellant was ever pleaded or addressed at the trial.[46] The determination by the assessing judge that exemplary damages were appropriate based on a suggested failure on the part of the appellant to properly train its employees, or to conduct some unspecified form of institutional review of the use of CS gas, was a determination of direct wrongdoing by the appellant, and constituted a finding of primary rather than vicarious liability on its part. That was not a basis on which it was open to the assessing judge to make an award of exemplary damages. If an award of exemplary damages was unavailable by reference to the conduct and states of mind of the individual officers, it was not open to make the appellant vicariously liable to pay exemplary damages.[47]
• [76] There is considerable force to the appellant's submission that if a case of direct liability on the part of the appellant had been run by the respondents alleging failures to train employees properly, to review the lawfulness of the use of CS gas and related issues, this would have opened up a wide range of potential evidence, including legal and policy advice provided within the relevant agencies of the appellant relating to the use of CS gas in juvenile detention centres. As a matter of pleadings and procedural fairness, it was not open to the assessing judge to award exemplary damages on a direct liability basis as opposed to a vicarious liability basis.
• [77] For these reasons, the appeals are allowed on this ground.

• [78] Given the finding that the awards of exemplary damages were made in error and will be set aside, it is unnecessary to consider whether the awards of exemplary damages were manifestly excessive. This is also one of the exceptions to the general requirement expressed in Kuru v State of New South Wales that an intermediate court of appeal deal with all grounds of appeal.[48] That is because the finding that circumstances did not exist to warrant an award of exemplary damages precludes any contingent assessment of whether the quantum of exemplary damages awarded was manifestly excessive. The same considerations which govern whether the circumstances existed to warrant an award of exemplary damages will also be decisive in the determination of the appropriate quantum of those damages.
• [79] Even were this Court to assume that the appellant failed in some duty to conduct an institutional review of the use of CS gas in youth detention centres, or to implement a proper training regime in that respect, in the circumstances of this case those findings would not sustain an award of exemplary damages in any amount. Similarly, even if this Court were to accept for the purpose of the exercise that the treatment of the respondents in the aftermath was in some way callous, in the assessment of exemplary damages the primary focus must be on the states of mind of the custodial officers. The level of exemplary damages awarded can only be commensurate with the extent to which the conduct was high-handed, outrageous, contemptuous of the respondent's rights, malicious and/or consciously unlawful, which in our assessment it was not for the reasons we have described.
• [80] The one observation we would make in relation to this ground of appeal is that the assessing judge awarded $200,000 to each plaintiff by way of exemplary damages without any consideration of the total amount of exemplary damages required to mark the disapproval of the appellant's conduct. As Hutley JA observed in Pollack v Volpato:

Whereas compensatory damages have to be approached by looking at the situation of the plaintiff in consequence of the wrongful act to which he has been subjected, punitive damages have to be looked at from the side of the defendant. If he is to be punished, it is his proper punishment which provides the basis for the assessment of damages.[49]

• [81] In this case, the assessing judge did not conduct any examination from the side of the appellant to determine what total amount of exemplary damages constituted a proper punishment, or the extent to which the quantum of exemplary damages required modification to take into account their unavailability in respect of any personal injury. As the appellant has submitted, since the "focus is on the conduct of the defendant"[50] rather than the perspective of the plaintiff, it is the total award of $800,000 which is relevant to the assessment of manifest excess. Without any exposition of how the conduct of the appellant and its officers warranted a total award in that amount, it has the appearance that the appellant has been punished four times for what is substantially the same conduct. That appearance is reinforced by the fact that the total award of exemplary damages falls well above the outer limits of such awards in the comparative cases referred to at Annexure A of the Appellant's Outline of Submissions dated 16 October 2023, including cases involving serious acts of gratuitous and brutal violence by law enforcement officers for which the State is vicariously liable.

Whether error in declining to allow interest on general damages

• [82] The appellant conceded that the respondents' cross-appeals on this issue should succeed if the appellant was successful on its appeals in relation to the awards of exemplary damages. The appellant's reasoning in that respect may be summarised briefly as follows.
• [83] Subject to exceptions not presently relevant, s 84(1) of the Supreme Court Act 1979 (NT) confers a broad discretion on the court to award interest up to judgment in the following terms:

In any proceeding in respect of a cause of action that arises after the commencement of this Act the Court may order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of that sum for the whole or any part of the period between the date when the cause of action arose and the date of the judgment.

• [84] The discretionary standard set out in House v The King, rather than the correctness standard, applies in determining whether the assessing judge erred in declining to allow interest on general damages. In the exercise of that discretion, the assessing judge did not err by taking into account the awards of exemplary damages which had been made. Unlike general damages, exemplary damages are not compensatory. Because of the very substantial award of exemplary damages made by the assessing judge, it was within the judicial discretion to decline to award interest because to do so was unnecessary "[to restore] a plaintiff to the position in which he or she would have been but for the defendant's negligence".[51]
• [85] The assessing judge's determination was not to fix the awards of general damages to the value of money at the time of judgment.[52] It was to recognise that the respondents were adequately compensated for being kept out of their money in the interim period by the awards of exemplary damages which were made. However, if the awards of exemplary damages are set aside, the basis for the decision to decline to award interest is removed and the respondents are entitled to an award of interest on general damages at four percent over the period between when the cause of action arose in the date of the judgment.
• [86] The appellant's reasoning in that respect should be accepted. The appellant has been successful on its appeals in relation to the awards of exemplary damages and, accordingly, the respondents' cross-appeals from the decision of the assessing judge not to award interest on general damages are allowed.

Whether error in not awarding aggravated damages to JB

• [87] As adverted to in the consideration of the previous ground of cross-appeal, aggravated damages differ from exemplary damages. The purpose of an award of exemplary damages is to punish the wrongdoer and such damages are not awarded to compensate the wronged individual. In Uren v John Fairfax & Sons Pty Ltd, Windeyer J described the difference in the following terms:

[A]ggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment-moral retribution or deterrence.[53]

• [88] In Carson v John Fairfax & Sons Ltd, a majority of the High Court said:

For the moment, it suffices to say that aggravated damages, awarded to reflect conduct by the defendant which aggravates the injury and increases the harm done to the appellant, are compensatory in nature ...[54]

• [89] The focus in determining whether to make an award of aggravated damages is on the effect of the wrongdoer's conduct on the injury or harm done to the wronged individual. It is a private focus based on the injury or harm actually occasioned to the individual by the wrongful conduct. This is to be contrasted with the focus of exemplary damages, which is on the conduct itself and the perceived need to punish the wrongdoer for the conduct and to deter such conduct in the future. This is a public focus based on the public interest. It follows from these observations that an award of aggravated damages is not justified by the wrongdoing alone. To justify an award of aggravated damages it must be demonstrated that there was conduct by the wrongdoer which "aggravated the injury and increased the harm" done to the wronged person.
• [90] The assessing judge addressed the awarding of aggravated damages as follows:

I have regard to the fact the plaintiffs were not the targets of the CS gas. They were all in their cells. They could have been, but were not told what was about to happen. One of the plaintiffs gave evidence there was an intercom. In any event they had no reassurance that this would be a brief dose of the gas, that they would be safe and would be taken out of the cells. There is a sense of grievance expressed as to why they were treated roughly, handcuffed from behind, placed on the basketball court on their stomachs and hosed. It was in order to decontaminate and contain them but it was a rough process. Given what they had endured, they deserved to be treated with more care than the callousness evident on the available footage. The plaintiffs look uncomfortable on the footage. They had not behaved like Jake Roper. Leroy O'Shea and Ethan Austral were asthmatic. They deserved more care after what had occurred but were not seen by a nurse until 10:00pm and then only briefly. The post exposure treatment extended the distress felt. The manner used for decontamination was humiliating.

There were however, fortunately no lasting effects. No further health concerns appear to have been reported to the nurse. The defendant points out the plaintiffs do not appear to be distressed when they are handcuffed on the ground and notes at times they are laughing. They were laughing at times when they could see each other's faces, however that reaction could be for many reasons. It can readily be inferred that there would be a sense of relief after experiencing the sensation of not feeling as though they could breathe when they were in their cells. The three plaintiffs who gave evidence about that part of the episode should receive some form of aggravated damages for the rather callous treatment after the exposure to the gas and the extended physical and psychological consequences. The use of force in the form of the CS gas was contrary to the Youth Justice Act and the obligations on Youth Justice Officers to keep detainees safe. This is all in the broader context of an unlawful use of force. As there is no evidence from Josiah Binsaris, I am unable to make an assessment under this head of compensatory damages.

I will award $20,000 each of the plaintiffs, Keiran Webster and Leroy O'Shea as aggravated damages. I will award Ethan Austral $15,000.[55]

• [91] The reasons given by the assessing judge for awarding aggravated damages to the respondents Webster, O'Shea and Austral were, in summary:

(a) they were not informed about the proposed use of CS gas and had no assurance that their exposure to the gas would be brief;

(b) they were aggrieved at being treated roughly after they were removed from their cells after Roper was subdued;

(c) O'Shea and Austral were asthmatic and "deserved more care", but were not seen by a nurse until 10 pm; and

(d) the manner used for decontamination was "humiliating".

• [92] It may be presumed that the reason for the assessing judge making higher awards of aggravated damages to Webster and O'Shea was that they had histories of suffering from asthma and Austral did not. There was no evidence that Binsaris had a history of asthma, so that circumstance identified by the assessing judge is irrelevant for these purposes.
• [93] The issue to be determined on this ground of cross-appeal is whether the assessing judge erred in declining to award aggravated damages to Binsaris on the basis that he had not given evidence. The appeal on this ground attracts the correctness standard. The decision not to award aggravated damages was not discretionary but was part of an evaluative process that permits of only one correct answer. In the application of that standard, the question is whether the assessing judge was able to draw inferences from the evidence which would justify a finding that the conduct of the appellant's officers actually and subjectively offended the respondent Binsaris's dignity or outraged his feelings.
• [94] They are not matters which may be inferred simply on the basis that he had no warning that the CS gas was going to be deployed and no assurance that his exposure would be brief. It is not enough that the court considers the conduct deserves condemnation. There must be evidence of injury to the plaintiff's feelings caused by the insult or humiliation of the conduct.[56] That distinction is encapsulated in the saying that aggravated damages are payable where the defendant's conduct shocks the plaintiff, while exemplary damages are payable where the defendant's conduct shocks the court.
• [95] The position of Binsaris in this respect may be contrasted with the position of the other respondents. There was a complete dearth of evidence from Binsaris at trial, and therefore before the assessing judge. There was no direct evidence upon which the assessing judge could base any findings about the additional subjective effects of the conduct of the appellant's officers upon Binsaris. The cross-appellant's specific complaint is that in view of the objective circumstances and the evidence given by the other plaintiffs, the assessing judge should have drawn the same inference in respect of the cross-appellant as she did in respect of the other plaintiffs about the existence of circumstances of aggravation and awarded aggravated damages accordingly. The two difficulties with that complaint are that aggravated damages are not concerned with "objective circumstances", and the assessing judge's findings in relation to the other respondents were based on their direct evidence as to their feelings rather than inferential in nature.
• [96] That evidence was contained in affidavits made by each of the other respondents which were read into evidence at trial and included statements, for example, about the subjective and differing effects that the teargas had on each of them. The evidence from O'Shea included the following passages:

The teargas affected me badly and from the way I saw [Webster] acting, it seemed to affect him badly as well. My throat was burning, I was choking, my eyes were stinging and my nose was running. [Webster] looked like he was throwing up. I had asthma and a heart-attack condition. The guards knew I had asthma because they provided me with Ventolin in the past. I found it really hard to breathe.

After they sprayed the teargas, I felt complete fear. I thought I was going to die. The worst thing was not knowing how long it was going to last and how long we were going to have to sit in there and burn.

[Webster] and I were treated the same as, or worse, than the other detainees even though we were not involved. I feel that I was treated the worst because I was the oldest. This felt very unfair because I was not involved in what happened.[57]

• [97] The evidence from Webster included the following passages:

That's when the guards threw something into the BMU and it felt like it exploded. I thought it was a bomb but I now know it was tear gas. I heard everyone react. [O'Shea] and I jumped down on the floor, ran towards the back of our cell and put the sheet and mattress over us.

I was affected immediately. I couldn't breathe properly. It felt like an anxiety attack. I couldn't open my eyes because it hurt too much. I got an instant headache as soon as I got a whiff of it. I never had a headache like that before. It was extremely painful.

It was so hard to breathe that [O'Shea] and I thought we were going to die. At first we were kind of joking about dying and then we started to seriously believe it because it was just so hard to breathe. I thought that I was eventually going to stop breathing. We started shaking each other's hands and saying our goodbyes.[58]

• [98] The evidence from Austral included the following passages:

Then all the guards were standing at the door near the admissions area and they sprayed the hall with gas.

The guards did not give a warning before they sprayed the gas.

They could have spoken to us through the intercom or they could have yelled at us through the admin or basketball area. We would have heard that.

The spray made me feel sick. I felt pain on my face and it was hurting my eyes. I had my shirt over my mouth so it didn't get in my mouth because it tasted yuck.[59]

• [99] Even allowing for the fact that the respondents could not claim aggravated damages for physical consequences amounting to personal injury,[60] that evidence also dealt with psychological consequences such as fear of impending death, feelings of unfair treatment and grievance about the lack of warning. The assessing judge was able to infer that the respondent Binsaris would have suffered "similar physical consequences" to the other respondents, and awarded general damages accordingly, but was unable to draw any inference in relation to psychological consequences.[61] That is because evidence of psychological impact is inherently subjective in the sense that it depends upon the person's perception of the event. The only evidence of the respondent Binsaris's subjective experience was what could be seen on the video recording which showed him and the other respondents laughing and in good spirits. Even if one accepts the assessing judge's attribution of their reaction to relief, it certainly does not sustain an inference that Binsaris was suffering some form of psychological insult or humiliation. The failure on the part of Binsaris to give evidence was unexplained and the only inference properly open was that any evidence he may have given in this respect would not have assisted his cause.
• [100] Generally speaking, it will be necessary for the plaintiff himself or herself to give evidence of his or her subjective experience in order to attract an award of aggravated damages. In some circumstances the testimony of other witnesses and documentary evidence may tend to prove the plaintiff's subjective experience even in the absence of direct evidence from the plaintiff. The relevant part of the decision in Amalgamated Television Services Pty Ltd v Marsden may be explained by the fact that there was evidence of the plaintiff's subjective loss adduced from other sources.[62] Evidence of that nature may include such things as an account from a spouse or treating medical practitioner of distress displayed by the plaintiff when describing the event in question.[63]
• [101] In the absence of any evidence of this nature in support of the claim for aggravated damages by Binsaris, the assessing judge was correct to conclude that "as there is no evidence from [Binsaris] I am unable to make an assessment under this head of compensatory damages". It follows that this ground of cross-appeal must be dismissed.

• [102] We make the following orders in the matters involving Austral, O'Shea and Webster:
  1. The appellant's appeal dated 11 September 2023 is allowed.
  2. The award of exemplary damages in order 1 of the orders made by on 1 September 2023 is set aside.
  3. The respondent's cross-appeal dated 26 September 2023 is allowed.
  4. Order 3 of the orders made on 1 September 2023 is set aside and in its place it is ordered that pursuant to s 84 of the Supreme Court Act, the respondent be awarded interest at the rate of 4% per annum for the period from 21 August 2014 to the date of judgement on 1 September 2023.
• [103] We make the following orders in the matter involving Binsaris:
  1. The appellant's appeal dated 11 September 2023 is allowed.
  2. The award of exemplary damages in order 1 of the orders made on 1 September 2023 is set aside.
  3. Ground 2 of the respondent's cross-appeal dated 26 September 2023 is allowed.
  4. Order 3 of the orders made 1 September 2023 is set aside and in its place it is ordered that pursuant to s 84 of the Supreme Court Act, the respondent be awarded interest at the rate of 4% per annum for the period from 21 August 2014 to the date of judgement on 1 September 2023.
  5. Ground 1 of the respondent's cross-appeal dated 26 September 2023 is dismissed.
• [104] If costs cannot be agreed, the parties are to file and serve submissions as to the appropriate costs orders on these appeals and cross-appeals, limited to four A4 pages, within 14 days of publication of these reasons.

______________________________

[1] LO & Ors v Northern Territory of Australia [2017] NTSC 22; (2017) 317 FLR 324.

[2] JB & Ors v Northern Territory of Australia [2019] NTCA 1.

[3] Binsaris & Ors v Northern Territory of Australia [2020] HCA 22; (2020) 270 CLR 549.

[4] Binsaris & Ors v Northern Territory of Australia [2023] NTSC 79.

[5] Binsaris & Ors v Northern Territory of Australia [2023] NTSC 79 at [33], [35], [48], [67], [71], [112].

[6] Binsaris & Ors v Northern Territory of Australia [2023] NTSC 79 at [115]- [116].

[7] Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 725; Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 at 436; Gipp v The Queen (1998) 194 CLR 106 at 145-146; Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1 at 35.

[8] Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 at [57], with footnotes omitted.

[9] Supreme Court Act, s 54.

[10] Supreme Court Act, s 55(1)(b).

[11] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]. See also Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [29]- [34].

[12] Minister for Immigration and Border Protection v SZVFW (supra) at [35]-[50].

[13] House v The King [1936] HCA 40, 55 CLR 499.

[14] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.

[15] House v The King (supra) at 504-505.

[16] Warren v Coombes (supra) at 552. See also Chief Executive Officer Department of Health v KMD & Ors [2024] NTCCA 8 at [79]- [84], and the approval of that formulation by the High Court in KMD v CEO (Department of Health NT) [2025] HCA 4 at [20]- [21], [45].

[17] SZVFW (supra) at [49]. See also Kifel CJ at [18], Nettle and Gordon JJ at [85]-[87]. Subsequently applied in R v Bauer [2018] HCA 40, 266 CLR 56 at [61] and Collaery v R [2021] ACTCA 28 at [53]- [54].

[18] GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, (2023) 97 ALJR 857 at [16].

[19] Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70.

[20] Gray v Motor Accident Commission (supra) at [12], [14]-[15].

[21] Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 13.

[22] State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 at [138].

[23] Binsaris & Ors v Northern Territory of Australia [2023] NTSC 79 at [96]- [99].

[24] LO & Ors v Northern Territory of Australia [2017] NTSC 22; (2017) 317 FLR 324 at [59]- [107.

[25] LO & Ors v Northern Territory of Australia [2017] NTSC 22; (2017) 317 FLR 324 at [166].

[26] Binsaris & Ors v Northern Territory of Australia [2020] HCA 22; (2020) 270 CLR 549 at [31]. Justice Gageler ultimately found that although the deployment of CS gas was both authorised under statute and reasonably necessary to restrain a breach of the peace by Jake Roper, the attendant common law immunity did not provide a defence to a claim in battery by the other detainees who were exposed to the CS gas as bystanders who suffered collateral harm by reason of the necessitous use of force.

[27] Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105 at [45]- [49]. The decision of Jackson J on these particular issues was upheld on appeal in Harvard Nominees Pty Ltd v Nicolleti [2022] FCAFC 179.

[28] Binsaris & Ors v Northern Territory of Australia [2023] NTSC 79 at [74]- [78].

[31] Binsaris & Ors v Northern Territory of Australia [2023] NTSC 79 at [78].

[32] See the findings in LO & Ors v Northern Territory of Australia [2017] NTSC 22; (2017) 317 FLR 324 at [154]- [165].

[33] Victoria v Horvath [2002] VSCA 177; (2002) 6 VR 326 at [60].

[34] Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 13.

[35] Cheng v Farjudi (2016) 93 NSWLR 95; [2016] NSWCA 316 at [55]- [56].

[36] Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 at [216]. The reasons in that case also address the principle that compensatory damages may be awarded to provide solace for injury and hurt caused or occurring after publication, but that has nothing to say about exemplary damages.

[37] White & Ors v South Australia [2010] SASC 95; (2010) 106 SASR 521 at [461]- [470]. It is a matter of some interest in the current context that one of the plaintiffs was an 11-year-old Aboriginal child who was indirectly sprayed with capsicum spray by police during the course of their unlawful arrest of the adult protesters. Although the child received compensatory damages, no award of exemplary damages was made in relation to that battery.

[38] The decision in Ali v Hartley Poynton Limited [2002] VSC 113 at [612]- [620] also does not advance that proposition. In that matter the defendant stockbroking firm was found to be vicariously liable for the negligence and false and misleading conduct of its brokers. The basis for the award of exemplary damages was that the conduct of the brokers constituted a conscious and contumelious disregard for the rights of the plaintiff by ignoring its public promises and ignoring the plaintiff's rights and interests. It was a matter of context only that this disregard occurred in an environment in which misconduct of that nature was facilitated, and that other clients were treated in a similar fashion as a result.

[39] See New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 at [233].

[40] LO & Ors v Northern Territory of Australia [2017] NTSC 22; (2017) 317 FLR 324 at [2]- [12].

[41] LO & Ors v Northern Territory of Australia [2017] NTSC 22; (2017) 317 FLR 324 at [184].

[42] See Youth Justice Act, s 154 as at 21 August 2014.

[43] See the finding in LO & Ors v Northern Territory of Australia [2017] NTSC 22; (2017) 317 FLR 324 at [138].

[44] See New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 at [34]- [52].

[45] See Fontin v Katapodis [1962] HCA 63; (1962) 108 CLR 177 at 187. See also Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 120, in which Taylor J referred to the relevant test as conduct that had been "high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff's rights".

[46] There was also no pleading, submission or evidence to the effect that the appellant had a relevant non-delegable duty of care to procure the careful performance of work by the prison officers and youth justice officers in its employ, and that an award of exemplary damages could be made on the basis of a breach of that duty. The factual inquiry for a non-delegable duty in the circumstances would have been quite different from the inquiries pursued at trial: see, for example, Bird v DP (a pseudonym) (2024) 98 ALJR 1349; [2024] HCA 41 at [40]- [41]. In the absence of any pleading or evidence relevant to the imposition and scope of a non-delegable duty of care, it cannot be said that any such duty extended to ensuring that CS gas was not used in the Centre or, more broadly, to ensuring that the respondents were somehow protected from that particular form of battery. It also cannot be said that any breach of a hypothetical non-delegable duty in the circumstances of this case would properly attract an award of exemplary damages. That is particularly so having regard to the belief that its use was lawful and to the divergence of judicial opinion on the issue already described.

[47] Victoria v Horvath [2002] VSCA 177; (2002) 6 VR 326 at [57]- [60]. This is very different to the situation in which exemplary damages are available by reference to the conduct of the individual officers, and the State is held vicariously liable for exemplary damages in reflection of its responsibility for the oversight, training and discipline of its officers: see, for example, New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 at [49]- [53].

[48] Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12].

[49] Pollack v Volpato [1973] 1 NSWLR 653 at 657.

[50] New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 at [34], approving the observations of Spigelman CJ in New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168.

[51] Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 at 66.

[52] Cf MBP (SA) v Gogic [1991] HCA 3; (1991) 171 CLR 657 at 663.

[53] Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 149.

[54] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 50-51.

[55] Binsaris & Ors v Northern Territory of Australia [2023] NTSC 79 at [111]- [113].

[56] Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 8; Lackersteen v Jones (1988) NTSC 60; (1988) 92 FLR 6 at 41.

[57] Binsaris & Ors v Northern Territory of Australia [2023] NTSC 79 at [20].

[58] Binsaris & Ors v Northern Territory of Australia [2023] NTSC 79 at [28].

[59] Binsaris & Ors v Northern Territory of Australia [2023] NTSC 79 at [31].

[60] Personal Injury (Liabilities and Damages) Act 2003 (NT), s 19.

[61] Binsaris & Ors v Northern Territory of Australia [2023] NTSC 79 at [109].

[62] Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1353], [1362], [1469].

[63] See, for example, Henry v Thompson [1989] 2 Qd R 412.